IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ACCRA – GHANA

CORAM: P. BRIGHT MENSAH JA PRESIDING

JENNIFER DADZIE (JA)
DR. E. OWUSU-DAPAA (JA)
CRIMINAL APPEAL
CASE NO. H2/25/2023
3RD JULY 2023

THE REPUBLIC … APPELLANT

vs
STEPHEN KWABENA OPUNI … 1ST RESPONDENT
SEIDU AGONGO … 2ND RESPONDENT
AGRICULT GHANA LTD … 3RD RESPONDENT
=======================================================
CONCURRING OPINION
=======================================================
DR. E. OWUSU-DAPAA, JA

INTRODUCTION:

1. I have had the advantage of reading in draft the Lead Judgment

ably and masterfully crafted by my noble and esteemed brother,

Bright Mensah JA and I am in complete agreement with his

reasoning and analysis of the authorities and conclusions. I add

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observations on adoption of proceedings in criminal trial and

the diminishing role of demeanour only to underline, without

in any way qualifying, what he has said.

2. My Lords, the interlocutory appeal before us emanates from

Ruling of High Court dated 4th April 2023 presided over his

Lordship Georgina K.A.Gyimah J. The factual background and

Grounds of Appeal have brilliantly been set out in the lead

Judgment and so I consider it unnecessary to rehash same but

to proceed right away with my contribution.

3. The fundamental question which is presented for our resolution

is whether a record of proceedings of a criminal trial commenced

when a trial court was differently constituted can be adopted by

the court when a new judge is assigned to preside over the trial.

ANALYSIS OF SUBMISSIONS AND RESOLUTION OF GROUNDS

OF APPEAL

Ground One: Misdirection in Adopting Proceedings in Criminal

Trial

And

Ground Two : The learned trial judge exercised his discretion

wrongly in arriving at a conclusion that, he will be “saddled with

the same suspicions and allegations of unfairness levelled against

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the current state of proceedings”, which have already been dealt

with by the Supreme Court.

4. The learned Attorney General has submitted that in exercising

his judicial discretion on whether to commence trial de novo or

adopt record of proceedings the court below did not confine

himself to evidence properly so-called that has been adduced but

entangled himself with irrelevant considerations including the

wrong assumption that adoption of proceedings will mean that

he is adopting every act and decision of the previous trial judge.

The Attorney General cited section 179(1) of the Evidence Act

1975 (NRCD 323) and Black’s law Dictionary, 9th ed to reinforce

his argument that evidence in the context of adoption of

proceedings simply refers to various written and non-written

material or testimony offered to prove facts in dispute. He added

that it is not every aspect of the proceedings at the trial court,

i.e., from taking of the plea to the current state of the

proceedings, that constituted evidence.

5. In his written submission for and on behalf of 1st Respondent,

learned counsel contended in one breadth that “the trial judge,

prior to arriving at his decision [ sic: de novo], took into

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consideration all the relevant laws and facts relating to the issue

at hand” and in another breadth submitted that by virtue of a

binding Supreme Court decision in The Republic v High Court

(Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni

(Civil Motion No J5/87/2022)(unreported) with respect to

starting criminal cases de novo, the trial judge had no choice in

the matter but to start de no vo.

6. The common thread running through submission by Attorney

General and Counsel for Respondents is : whether there is

binding decision of Supreme Court on commencing part-heard

criminal case de novo. Counsel for Respondents have forcefully

argued that the supreme court decision in The Republic v

High Court (Criminal Division) Accra; Ex Parte Stephen

Kwabena Opuni (Civil Motion No J5/87/2022)(unreported)

has resolved the issue of commencing trial de novo in criminal

cases when the court becomes differently constituted .

7. It is a salutary obligation for any court lower than the Supreme

Court no to treat lightly an assertion that what is being

disputed by the parties is settled by a decision of the Supreme

Court. See Article 129(3) of the 1992 Constitution.

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8. This provision of the constitution requires the court before

which a decision of the Supreme Court has been cited to read

and explore the ratio decidendi of the said decision so as to be

certain about its binding effect. Decisional law or caselaw

should not be cited by legal practitioners unless the relevant

case has properly been read and digested. Lack of diligence in

deploying judicial decisions to buttress arguments has been

commented upon by Dotse JSC The Republic v High Court

(Criminal Division) Accra; Ex Parte Stephen Kwabena

Opuni (Civil Motion No J5/87/2022) delivered on 24/1/2023

(unreported) when he remarked:

“Having quoted at length from this Ex-parte Daniel case,

we deem it prudent to sound a note of caution to all

practitioners of the law that it is necessary and

obligatory for them to thoroughly read reported cases

before seeking to rely on them as their authorities. What

must be noted is that, facts of a decided case must

always be taken into consideration whenever a reliance

is to be made on that case. Secondly, the principle of

law decided in the said case must be seen on the face of

it to be applicable to the circumstances of the case to

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which it has been referred to for application. Quite too

often, we find learned counsel making references and

relying on the doctrine of stare decisis in cases without

any corresponding resemblance and application to the

case in point.”

9. To ascertain whether Counsel for 1st Respondent is correct in

his assertion that the Supreme Court decision in Ex Parte

Stephen Kwabena Opuni (Civil Motion No J5/87/2022)

delivered on 24/1/2023 and reasons rendered on

10/2/2023 is applicable and for that matter binding by reason

of its being apex court as ordained by the constitution, we need

to know the material facts and core issues that were resolved by

the apex court. The facts of the case as gleaned from Lead

Opinion of Dotse JSC were that Applicant therein claimed that

having attained the age of seventy (70) years, which is the

compulsory retirement age for Supreme Court Judges, the

learned trial Judge, Honyenuga JSC is disabled from continuing

to preside over case No. CR/158/2018 intitutled Republic v

Stephen Kwabena Opuni without an express extension of the

six months as provided in article 145 (2) (a) and (4) of the

Constitution by the appointing authority, the President of the

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Republic of Ghana. It was further the case of Applicant that , on

the 7th day of November 2022, he caused an application to be

filed at the registry of the court for Honyenuga JSC, to cease

hearing the case principally because he had attained the

statutory retirement age of seventy (70) years as provided in

Article 145 (2) (a) of the Constitution 1992 and same was

subsequently dismissed by the learned trial Judge Honyenuga

JSC when in Applicant’s view his office as additional High Court

Judge had become vacant by effluxion of time as he had attained

the compulsory retirement age as Supreme Court Justice. The

Applicant in the case alluded to sought certiorari to quash

rulings made by Honyenuga JSC sitting as additional High

Court Judge when he attained 70 years and had not been given

six months extension by the President and also perpetual

injunction to restrain him from future hearing of the case. The

issues formulated by the Supreme Court for resolution of the

case under reference were:

i. Whether or not the learned trial Judge Honyenuga JSC

acted without jurisdiction when he continued to sit and

adjudicate on Suit No. CR/158/2018 intitutled

Republic v Stephen Kwabena Opuni, Seidu Agongo &

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Agricult Ghana Limited on 11th , 17th October, 2022,

7th , 14th , and 24th November 2002 and 5th December

2022 respectively and if this is in breach of article 145

(2) (a) of the Constitution 1992.

ii. Whether or not the learned trial Judge Honyenuga JSC

acted in breach of article 129 (3) of the Constitution

1992 when he refused to follow the decisions in

Republic v High Court, Ex parte Agbesi Awusu II (No.2)

[2003-2004] and the unreported judgment of the

Supreme Court in review motion Number J7/20/2021

Republic v High Court, Criminal Division 1 Ex parte

Stephen Kwabena Opuni dated 26th day of October

2021.

iii. Whether or not the learned trial Judge committed an

error of law patent on the face of the record when in the

face of rival meanings placed on Articles 139 (1) (c) and

145 (4) by the parties, i.e. that it is the President and

not the Chief Justice who is the proper person to

exercise those powers, he nonetheless proceeded to

interprete same by upholding the prosecution’s

interpretation over and in preference to that of the 1st

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Accused and that, this is in clear breach of article 130

(2) of the Constitution. In other words, whether the

learned trial Judge’s extension of 6 months was validly

obtained.

iv. Whether or not the learned trial Judge’s position as an

additional High Court Judge became vacant when he

attained seventy (70) years as provided for in article 145

(2) (a) of the Constitution and he should be perpetually

restrained from sitting as a Judge and in particular on

case No. CR/158/2018 – Republic v Stephen Kwabena

Opuni, Seidu Agongo & Agricult Ghana Ltd.

10. Having regard to the above issues formulated by His Lordship

Dotse JSC who wrote the unanimous decision of the Supreme

Court in Ex Parte Stephen Kwabena Opuni (Civil Motion No

J5/87/2022) it is abundantly clear that by no stretch of legal

imagination can argument be entertained that holdings or

answers to the four issues above in the said case would include

holding on whether proceedings can be adopted in criminal case

when a court before which it is pending is differently

constituted. That said, I consider it unnecessary to state

holdings and reasoning for those holdings which the Supreme

Page 9 of 26
Court provided to the issues above in Ex Parte Stephen

Kwabena Opuni (Civil Motion No J5/87/2022) here.

Thus, it is evident that material facts in that case as well as legal

issues that had to be determined are radically and materially

different from the singular issue the instant appeal turns on

namely whether proceedings in an ongoing criminal trial can be

adopted by the court when it is differently constituted or the

court upon being differently constituted must ipso facto trigger

trial de novo.

11. Learned Counsel for 1st Respondent, respectfully misconceived

what the true ratio decidendi in Ex Parte Stephen Kwabena

Opuni (Civil Motion No J5/87/2022) is, when, at page 9 of his

Written Submission filed on 27th June 2023, he stated

categorically that by the said decision the Supreme Court had

emphatically held that “in criminal trial the practice is that the

case has to start de novo”. Counsel quoted portions of page 17

to 18 of the decision of the Supreme Court as follows:

“In the case of Awudome (Tsito) Stool v Peki Stool supra,

the court stated as follows:- “The established rule is that

when a case is transferred from one High Court to

another, the parties have the option to adopt the

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proceedings or to have the trial started de novo. This is

the common law rule which has been adopted and

practiced for many years in our courts. That was indeed

the procedure adopted in Boama v Okyere [1967] GLR

548 and Coleshill v Manchester Corporation [1928] I KB

766, the only cases cited by the parties in this appeal.”

The Supreme Court did not mention its application to the

criminal cases. There is also no specific legal provision on

whether part heard trials must start de novo or be

adopted by the new Judge. The practice for now is that,

in criminal trials, the practice is to start trials de novo.

Perhaps the time has come for this problem to be

reviewed. This is because, if as a country we are to make

some progress in the prosecution of criminal cases,

especially corruption related cases pursuant to the Article

19 provisions of the Constitution 1992, then the bold step

has to be taken to introduce sweeping reforms in this part

of our criminal justice. We therefore appeal to the Chief

Justice to urgently consider reforms in this part of our

criminal justice. “

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See: [DENNIS LAW ONLINE REPORT

www.dennislawgh.com p18]

12. It is important to note that in in Ex Parte Stephen Kwabena

Opuni (Civil Motion No J5/87/2022) (supra) Dotse JSC was

expressing his dissatisfaction about tactics including multiple

applications by counsel for accused persons in criminal cases

especially corruption offence with the view of getting the case

not ever concluded because of absence of mandatory rules or

precedent on adoption of proceedings in criminal cases unlike

civil cases. The revered jurist, Dotse JSC in the said in Ex Parte

Stephen Kwabena Opuni (Civil Motion No J5/87/2022) had

actually recalled similar corruption case handled by a Judge

who was on the verge of going on retirement and preposterous

legal machinations resorted to by lawyer for the Accused in

order to impede progress of hearing of the case. Learned

Counsel did not quote this aspect of Dotse JSC’s opinion so I

quote that portion of Ex Parte Stephen Kwabena Opuni (Civil

Motion No J5/87/2022) and provide the context for the obiter

dictum made by the Court which Learned Counsel is citing as

binding authority. At page 16 of the 39 paged Ruling of the

Supreme Court, Dotse JSC stated:

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“We observe that, the Supreme Court as far back as

2003-2004, had the presence of mind and the

premonition to comment on the conduct of counsel in that

case which created the impression that it was

intentionally delaying the pace of the case to prevent

Justice Afreh from continuing and completing the case.

Twenty (20) years down the line, it appears that those in

charge of administration of justice have not found any

antidote to this inimical and dangerous phenomenon

which has instead gained deep roots. It is however

gratifying to observe that, the Supreme Court has dealt

with this phenomenon by the directions given to compel

parties to adopt proceedings in civil cases.” The

comments of the Supreme Court were expressed on

pages 373-374 in these hallowed words as follows:- “In

the case of Speedline Stevedoring Co., Ltd. v. S. M. Kotei

and Another, the exhibit A, tendered in that case by the

Applicant, convinces us that the Judge, Mr. Justice Afreh,

was seized of the matter and the proceedings had

commenced before him prior to March 27, 2003, when he

took evidence from the first witness. For instance, on 14th

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March, 2003, Mr. Justice Afreh had made an order for

discoveries. He listened to and dismissed a preliminary

objection by one of the parties, for which he gave reasons

later. Other matters were dealt with. Our impression,

which may be wrong, is that it was Counsel for the

Applicant whose conduct contributed in no small

measure in the delay in taking evidence. As appears from

the Applicant's Exhibit "A," his Counsel did not seem to

have even an address for the service of process which

was returned when sent to a Hotel. Whether or not these

antics were intended to slow down the proceedings, in

anticipation of the retirement of Mr Justice Afreh, it

certainly did have at least that partial result. It seems to

us that in the circumstances the strictures against the

progress of the case are not in the best taste.” From the

above rendition of the Supreme Court, it bears emphasis

that, if this Court and the Administrators of the Criminal

Justice system are not to become laughing stock, then

swift reforms in the criminal justice system must be put

in place to ensure that, proceedings taken before a Judge

who has retired or not available to continue the trial in

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the case are adopted and put before another Court and

judge to be continued. There should be no need to start

such cases de novo in criminal cases because it is

gratifying to observe that, this Court has already dealt

with this phenomenon by the directives given to compel

parties adopt proceedings in civil cases. See case of

Awudome (Tsito) Stool v Peki Stool [2009] SCGLR 681.

Page 16-17 of Judgement ( ONLINE REPORT

www.dennislawgh.com)

13. For avoidance of doubt, it is worth reiterating the point made

earlier in this concurring opinion that the Ruling of the Supreme

Court in Ex Parte Stephen Kwabena Opuni (Civil Motion No

J5/87/2022) did not resolve the issue of whether proceedings

in criminal trial pending before a court which is now differently

constituted should be adopted or not. Also worth emphasising

is that the decision in Ex Parte Stephen Kwabena Opuni did

not resolve the issue whether mandatorily there should be de

novo trial whenever court conducting criminal trial is differently

constituted. It is my considered view that erudition in the Ruling

relating to the trial de novo or adoption of proceedings was

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obiter dicta worthy of greatest degree of respect but not binding

as precedent in accordance with the doctrine of stare decisis.

14.To the extent that the ratio decidendi in Ex Parte Stephen

Kwabena Opuni (Civil Motion No J5/87/2022) did not extend

to trial de novo in criminal case I would unapologetically decline

invitation by learned counsel that it is binding precedent that

the High Court differently constituted must commence trial de

novo.

15. Having come to conclusion that there is no binding decision on

trial de novo in criminal cases or adoption of proceedings, it is

my view that the trial judge who was assigned to take over the

trial following compulsory retirement of Honyenuga JSC (

additional High Court Judge) had judicial discretion regarding

adoption of proceedings or embarking upon trial de novo but he

ended up exercising it wrongly. Few additional thoughts of mine

would suffice here.

16. I have read and pondered severally a statement by the learned

trial judge at line 19 of p181 ROA but has not been able to

persuade myself against profound logical fallacy and judicial

efficiency deficit embedded in that statement. This is what he

said:

Page 16 of 26
“ I appreciate the fact that this case has travelled for quite

some time and a lot of witnesses have been called and

discharged but it is my candid opinion that it will be in

the interest of justice and in the interest of all parties for

this court to start on a clean slate, free from all the

shackles of allegations of unfairness and counter

allegations of intentional delays that has

bedevilled this case over its duration and that has

resulted in the filing of numerous applications

before this court, differently constituted and also

before the Supreme Court.” (mine emphasis added by

bold italics)

There are practical difficulties with the above important statement

of the learned trial judge which ultimately informed the exercise of

his discretion in refusing to adopt proceedings for continuation of

the case. In the first place, learned trial judge’s statement above

is tacitly premised upon the assumption that starting the trial all

over would be a panacea to “shackles of allegations of unfairness

and counter-allegations of intentional delays” made against the

court when it was differently constituted.

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17. Common experience is part of considerations that inform

application of law and exercise of judicial discretion. This brings

to the fore the cliché of Oliver Wendel Holmes Jr in his book,

The Common Law (1881) that:

“The life of the law has not been logic: it has been experience.

The felt necessities of the time, the prevalent moral and

political theories, intuitions of public policy, avowed or

unconscious, even the prejudices which judges share with

their fellow-men, have had a good deal more to do than the

syllogism in determining the rules by which men should be

governed. The law embodies the story of a nation’s

development through many centuries, and it cannot be dealt

with as if it contained only the axioms and corollaries of a

book of mathematics. In order to know what it is, we must

know what it has been, and what it tends to become... The

substance of the law at any given time pretty nearly

corresponds, so far as it goes, with what is then understood

to be convenient; but its form and machinery, and the degree

to which it is able to work out desired results, depend very

much upon its past.”

Page 18 of 26
18. Indeed, common experience in our Ghanaian society and our

legal system would certainly suggest that criminal prosecution

regarding offences of causing financial loss and corruption often

involve public office holders and politicians and for that matter

there would always be allegation of unfairness against

management and conduct of trial regardless of how the court is

constituted.

19. Similarly, lawyers for accused persons in such high- profile

criminal litigation would push the legal system to its elastic limit

and deploy all manner of applications permissible under the law

so long as it would serve the interest of their client. This is

perfectly tolerable because it is part of realising the accused

person’s right to fair trial under Article 19 of the 1992

Constitution. As a matter of common experience in our legal

system, during similar trial by the late Justice Afreh JSC

(additional High Court Judge) about twenty years ago as Dotse

JSC alluded to in Ex Parte Stephen Kwabena Opuni (Civil

Motion No J5/87/2022) there were similar practical challenges.

No court of law can prevent Accused persons or Prosecution

from making applications before it in so far as it is considered

expedient by the relevant party. It is for this reason that I

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consider the learned trial judge to have exercised his discretion

on irrelevant and irrational grounds. His decision to start the

trial de novo is no guarantee that lawyers for the accused

persons or prosecution will not file applications or even make

allegations of unfairness when they want to. In the same way,

merely starting de novo does not mean that the court differently

constituted now is clothed with judicial immunity against

public criticism of unfairness and unnecessary delay in hearing

the case.

20.The other incongruity discernible in the statement of His

Lordship the trial judge quoted above is the unarticulated faulty

assumption that once he has taken over the court which was

previously differently constituted it is taken for granted that

there cannot be situations for the trial to suffer another change

in the judge who presides over the court. It is trite knowledge

that a court may be differently constituted as a result of a judge

recusing himself, death , resignation or dismissal or transfer or

administrative fiat of the Chief Justice.

21. For the foregoing reasons and analysis in the lead Opinion by

my venerable brother, Bright Mensa JA, I concur that Grounds

I and II of the Appeal should be allowed.

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Ground Five: The learned trial judge erred, in the

circumstances of the instant case, in placing undue premium

on the need to assess the demeanour of the witnesses called

at the trial.

22. The pith of arguments by Counsel for Appellant on this ground

of appeal is essentially that by the wording of Section 80(2) of

Evidence Act 1975 (NRCD 323) demeanour of a witness is just

one many non-exhaustive factors that may be taken into

account in assessing credibility of a witness. The learned

Attorney General grounded his submission on decision of

Supreme Court in Agyemang (Substituted) by Banahene &

Ors v Anane [2013-2014] 1SCGLR 241(per Wood CJ) to the

effect that many years of judicial experience has taught us that

“hardly does the demeanour qua demeanour of witnesses play

a significant role when evaluating the credibility of witnesses.“

23. Counsel for 1st Respondent did not put forward his own

arguments in relation to merits of this ground of appeal but

devoted p22-23 of his written submission to unearthing

depositions from Affidavit in support of review application to

Supreme Court which the Attorney General had pursued in

Page 21 of 26
REPUBLIC VRS HIGH COURT (CRIMINAL DIVISION 1),

ACCRA EXPARTE: STEPHEN OPUNI (Suit number

J7/20/2021). I have accessed the 78-page Judgement of the

Supreme Court in that case decided on 26th October 2021 and

read it closely. The majority opinion of the court did not ground

their decision on the deposition that failure to revise the

Ordinary Bench decision of the court will resort in trial de novo

otherwise trial judge cannot have benefit of demeanour. It was

Tanko JSC who in his dissenting opinion alluded to that

deposition but eventually rejected it. It is worth emphasizing

that the Majority opinion was not premised upon deposition

that failure to reverse would result in de novo trial otherwise

demeanour cannot be observed. We find disingenuity on part of

Counsel for 1st Respondent in how he chose to exhibit notice of

motion and affidavit in support for review aforesaid to his

Written Submission but did not demonstrate from the review

decision of the Supreme Court what the court’s reaction to

demeanour argument was.

24.Demeanour as an indicator for assessment of credibility of

witness is increasingly discredited and demonstrated to be

unreliable factor in most cases. I agree with the submission of

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the Attorney General that the trial judge overrated demeanour

as factor for assessing credibility of witness when he exercised

discretion to do trial de novo instead of adopting record of

proceedings for continuation. Researchers and judicial

opinions exhibit scepticism towards the value of demeanour

evidence. In S v Kelly 1980 3 SA 301 (A) 308 the South Africa

Supreme Court of Appeal expressed caution about the reliability

of demeanour findings:

“[D]emeanour is, at best, a tricky horse to ride. There is no

doubt that demeanour – “that vague and indefinable factor in

estimating a witness’s credibility” . . . can be most misleading.

The hallmark of a truthful witness is not always a confident

and courteous manner or an appearance of frankness and

candour. As was stated by Wessels JA in Estate Kaluza v

Braeuer . . . more than half a century ago in this Court: ‘A

crafty witness may simulate an honest demeanour and the

Judge had often but little before him to enable him to

penetrate the armour of a witness who tells a plausible story.’

On the other hand, an honest witness may be shy or nervous

by nature, and in the witness-box show such hesitation and

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discomfort as to lead the court into concluding wrongly, that

he is not a truthful person.”

25. Also, in President of the Republic of South Africa v South

African Rugby Football Union 2000 1 SA 339 (CC) the

Constitutional Court of South Africa exhorted that “the

truthfulness or untruthfulness of a witness can rarely be

determined by demeanour alone without regard to other factors

including, especially, probabilities”. ( mine emphasis added)

26. It is apposite to reiterate that it is not so much about

demeanour of the witness that holds the key to credibility but

so many other factors as adumbrated in Section 80(2) of NRCD

323 as extensively considered in the lead Judgment.

27.Similarly, Professor H.R. Uviller in his article “Credence,

character, and the rules of evidence: Seeing through the

liar’s tale” 1993 Duke LJ 782–784 pointed out the diminished

the role of demeanour and rather stressed other :

“Factors – all of which would be readily discernible by an

appellate judge reading a transcript of the testimony – such as

self-contradiction, inherent plausibility or the lack thereof,

omissions and imprecisions, verification of facts testified to by

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other witnesses and exhibits, bias or motive on the part of the

witness, and limitations of recall are among the most important

indications of witness credibility”

28.Behavioural cues often associated with lying, such as averting

the gaze or fidgeting, are not necessarily a sign of dishonesty.

Giving evidence at a trial is also an unfamiliar and stressful

situation for most people, which can alter their behaviour. Other

factors, such as the way in which evidence is given and the

general character of the witness (such as their level of

confidence), may also affect demeanour. In an article authored

by Ekman and O’Sullivan “Who can catch a liar?” 1991

American Psychologist 913 they assessed the lie detection

ability of more than 500 subjects, including officers from the

Federal Bureau of Investigation, the Secret Service, the National

Security Agency, the Drug Enforcement Agency, and the

California State Police, as well as psychiatrists, college students

and trial judges and summarised the result of their study as

follows:

“Two types of errors occur when truthfulness based on

demeanour is judged: In a false negative, a liar is incorrectly

judged to be truthful; in a false positive, a truthful person is

Page 25 of 26
incorrectly judged to be lying. In a high -stakes lie, either type

of mistake can have serious consequences. In dealing with

such situations, it would be important – for the clinician, the

jurist, the businessman, the counterintelligence agent . . . – to

know how much confidence should be placed in judgments

based on demeanour . . . The answer from 20 years of research

is ‘not much’.” -

29. The trial judge in my view ought to have appreciated the

increasing skepticism regarding demeanor in assessment of

credibility as pointed out in plethora of Ghanaian judicial

decisions including Agyeman (Substituted) by Banahene &

Ors v Anane (supra), Duah v Yorkwa [1993-1994] I GLR 217

ably cited by the Attorney General.

CONCLUSION

In the light of the foregoing reasons which are additional to the

lead opinion of my esteemed brother, Bright Mensah (JA) I hereby

concur that the appeal should be ALLOWED in its entirety.

SGD
DR. ERNEST OWUSU-DAPAA
(JUSTICE OF COURT OF APPEAL)

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